News About Bay Oaks Park

A Trial for the Trees?
By D. D. Delaney
Tuesday, Oct. 24, 2006

Counsel for the Bay Oaks Park Committee presented oral arguments before a three-judge panel of the Virginia Supreme Court in Richmond on Oct. 18 in an attempt to reverse Norfolk City Council�s decision to authorize residential development in East Ocean View�s last significant open green space.

Andrew M. Sacks, pro-bono attorney for the Committee, summarized his 34-page Petition for Appeal, filed last June, in an energetic and passionate presentation designed to convince the justices that "an error had been committed which needs to be corrected."

He referred to a Feb. 23 Circuit Court decision declaring a citizens� petition for a referendum invalid on grounds that presiding Judge Alfred D. Swersky admitted were "Dickensian" in their "hyper-technicality."

Sacks contends that, hyper-technical or not, the decision was simply wrong.

Limited to 10 minutes to argue his case, Sacks chose to emphasize two of five errors in Swersky�s decision.

The first is the judge�s agreement that the petition was improperly constructed.

Petitioners, under Sacks direction, had grouped the four city ordinances they disagreed with into a single petition and collected well over 5,000 signatures. The four ordinances together cleared the way for development in Bay Oaks Park, a 21-acre tract of trees and meadow between 3rd and 7th Bay Sts.

But the city argued � and Swersky "hesitatingly" and "very reluctantly" agreed � that, because Council had passed the ordinances separately (though one after another, in a single session), citizens must vote upon them separately at the polls. Therefore, four separate petitions, each with a minimum of 4,000 valid signatures, were necessary before a referendum could properly be ordered.

Sacks argued that nowhere is it specified in Norfolk�s City Charter, which details the rules for citizen referenda initiatives, that a petition may only reference a single ordinance. In fact, he said, the issue is not addressed directly at all, neither allowing nor disallowing multiple ordinances in a petition.

However, with the Charter�s several references to "ordinance or ordinances," Sacks said, it seems "obvious...that multiple ordinances could be included in one petition."

Presiding Judge Elizabeth B. Lacy interrupted Sacks about the defendants� contention that the petition called for "an up-or-down vote" on the ordinances "as a block" � which is the "hyper-technical" flaw Swersky agreed was present in the Committee�s case.

But that interpretation, Sacks replied, "is simply wrong. There is nothing that says that."

"We did it this way for clarity, practicality, and pragmatism." To ask each individual citizen to sign four separate petitions � one for each ordinance � would have been unreasonably confusing, Sacks said.

The second error Swersky made in his decision, Sacks argued, was "structural"�dismissing the case "prematurely" with a summary judgment favoring the defendants "when there was no request by the City to dismiss."

The Feb. 23 pre-trial hearing at which that happened was set to consider a motion Sacks had filed for a summary judgment to set aside the defendants� objections and proceed to a referendum. Swersky, a retired Circuit Court judge from northern Virginia, was brought in to hear the case when Norfolk�s sitting judges recused themselves.

Swersky then proceeded to rule in the Committee�s favor in two of the objections but not the third � the matter of the petition�s improper form � after which he dismissed the case with a summary judgment in favor of the defendants.

"No civil case should pass muster in Virginia where the trial judge" dismisses a case without a cross-motion from the defense to do so, Sacks told the Supreme Court panel.

In February, Sacks said after the panel hearing, he was prepared either "to win the summary judgment and have no trial or to lose the summary judgment and go to trial �and maybe lose the trial. But we never had our day in court," and that, he believes, is an error the Supreme Court justices cannot overlook.

"I have faith in the system," he says. "I have to believe things so obvious to us should be obvious to them."

The panel will now decide whether the Bay Oaks appeal should be heard by the full, seven-member Court in a future session. That decision could come before the end of the month. �